Opinion
644 KA 19-02345
09-29-2023
The PEOPLE of the State of New York, Respondent, v. Alberto REYES, Also Known as Alberto Ebarado Gutierrez-Reyes, Defendant-Appellant.
EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (DONALD M. THOMPSON OF COUNSEL), FOR DEFENDANT-APPELLANT. MICHAEL D. CALARCO, DISTRICT ATTORNEY, LYONS (CATHERINE A. MENIKOTZ OF COUNSEL), FOR RESPONDENT.
EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (DONALD M. THOMPSON OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL D. CALARCO, DISTRICT ATTORNEY, LYONS (CATHERINE A. MENIKOTZ OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., BANNISTER, OGDEN, GREENWOOD, AND NOWAK, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his guilty plea of two counts of manslaughter in the first degree ( Penal Law § 125.20 [1] ), defendant contends that his plea was not knowing, intelligent and voluntary because County Court failed to advise him that he could be subject to deportation if he pleaded guilty (see People v. Peque , 22 N.Y.3d 168, 197, 980 N.Y.S.2d 280, 3 N.E.3d 617 [2013], cert denied 574 U.S. 840, 135 S.Ct. 90, 190 L.Ed.2d 75 [2014] ). We conclude that defendant's contention is not preserved for our review (see CPL 470.05 [2] ), and that, under the circumstances of this case, the narrow exception to the preservation doctrine does not apply (see People v. Chelley , 120 A.D.3d 987, 988, 990 N.Y.S.2d 431 [4th Dept. 2014] ; cf. Peque , 22 N.Y.3d at 182-183, 980 N.Y.S.2d 280, 3 N.E.3d 617 ).
Even assuming, arguendo, that defendant's waiver of the right to appeal is invalid, as the People concede, we perceive no basis in the record to exercise our power to modify the negotiated sentence as a matter of discretion in the interest of justice (see CPL 470.15 [6] [b] ).